“REASONABLE RULES” FOR RECORD INSPECTIONS?

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published September 25, 2018

The Florida Legislature – in its infinite wisdom – created a cash cow for attorneys who like to twist the wording of the law by adding the word “REASONABLE” into Florida statutes 720.303(5)(c):

The association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but may not require a parcel owner to demonstrate any proper purpose for the inspection, state any reason for the inspection, or limit a parcel owner’s right to inspect records to less than one 8-hour business day per month. The association may impose fees to cover the costs of providing copies of the official records, including the costs of copying and the costs required for personnel to retrieve and copy the records if the time spent retrieving and copying the records exceeds one-half hour and if the personnel costs do not exceed $20 per hour. Personnel costs may not be charged for records requests that result in the copying of 25 or fewer pages. The association may charge up to 25 cents per page for copies made on the association’s photocopier.

And dictatorial board members are only too willing – with the help of a well-paid association attorney, to create rules they consider reasonable and add fees that are clearly not covered by the statutes. While the statutes allow associations to charge for making photocopies of requested records, there are clearly no charges allowed for “preparing records for inspection” or having a “watchdog” being paid by the owner while inspecting the records.

And if an association member complains about such charges being levied, the association attorney, in this case Jane L. Cornett, from the Becker Law Firm (former Becker & Poliakoff) will write the owner a letter (CLICK HERE TO READ THE LETTER) trying to explain these charges. Just for factual reasons: FS 720 did not come into existence in 1992 as stated in Cornett’s letter, it only came into existence in the year 2000 when the Florida legislature renumbered the former FS 617.301-312 into FS 720.301-312 – without changing the wording of these provisions.

We all know that community association law is so-called positive law, meaning it allows exactly what is stated in the law. No reading between the lines, no adding to the wording that was created by the legislature.

FS 720.303(5) allows charges for photo-copying, but not for anything else. If the legislature would have meant to allow any other charges to be levied they would have clearly said so. Remember: The re-wording of the law happened after some management firms created outrageous charges for record-inspection. [See: EXPENSIVE REQUEST TO INSPECT RECORDS]

No matter what Cornett tries to explain, there is no wording dealing with “excessive staff time.” A professional management company should require no “staff time” to prepare for inspection of records. In an organized office records should be easily available for inspection – not requiring excessive staff time. And paying for a “watch-dog”? Some folks really come up with rules that are anything but “reasonable.” These kinds of rules are clearly intended to deter owners from requesting records for inspection – and that is clearly NOT what the legislature intended to do when re-wording the record inspection laws.

Let’s make no mistake: Jane Cornett definitely charged the association – meaning its members – more money for writing this letter than the association wanted to charge the owner for his record inspection.

I don’t think that it was ever the intention of the legislature to burden the association members with the cost of charges for having the association attorney writing a letter explaining “unreasonable” charges for a record inspection.

Let’s face it: Fights over record inspections have turned into a cash cow for attorneys. Especially adding the words “reasonable rules” has created more problems than anything else. Don’t forget: The word “reasonable” can be interpreted in many ways. And what one person thinks is reasonable, may be totally unreasonable for others.

It’s high time to add the language to the HOA ACT (FS 720) the Legislature added to FS 718 this year:

FS 718.111(12) (g)1. By January 1, 2019, an association managing a condominium with 150 or more units which does not contain timeshare units shall post digital copies of the documents specified in subparagraph 2. on its website.

a. The association’s website must be:

(I) An independent website or web portal wholly owned and operated by the association; or

(II) A website or web portal operated by a third-party provider with whom the association owns, leases, rents, or otherwise obtains the right to operate a web page, subpage, web portal, or collection of subpages or web portals dedicated to the association’s activities and on which required notices, records, and documents may be posted by the association.

b. The association’s website must be accessible through the Internet and must contain a subpage, web portal, or other protected electronic location that is inaccessible to the general public and accessible only to unit owners and employees of the association.

c. Upon a unit owner’s written request, the association must provide the unit owner with a username and password and access to the protected sections of the association’s website that contain any notices, records, or documents that must be electronically provided.

2. A current copy of the following documents must be posted in digital format on the association’s website:

a. The recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

b. The recorded bylaws of the association and each amendment to the bylaws.

c. The articles of incorporation of the association, or other documents creating the association, and each amendment thereto. The copy posted pursuant to this sub-subparagraph must be a copy of the articles of incorporation filed with the Department of State.

d. The rules of the association.

e. A list of all executory contracts or documents to which the association is a party or under which the association or the unit owners have an obligation or responsibility and, after bidding for the related materials, equipment, or services has closed, a list of bids received by the association within the past year. Summaries of bids for materials, equipment, or services which exceed $500 must be maintained on the website for 1 year. In lieu of summaries, complete copies of the bids may be posted.

f. The annual budget required by s. 718.112(2)(f) and any proposed budget to be considered at the annual meeting.

g. The financial report required by subsection (13) and any monthly income or expense statement to be considered at a meeting.

h. The certification of each director required by s. 718.112(2)(d)4.b.

i. All contracts or transactions between the association and any director, officer, corporation, firm, or association that is not an affiliated condominium association or any other entity in which an association director is also a director or officer and financially interested.

j. Any contract or document regarding a conflict of interest or possible conflict of interest as provided in ss. 468.436(2)(b)6. and 718.3027(3).

k. The notice of any unit owner meeting and the agenda for the meeting, as required by s. 718.112(2)(d)3., no later than 14 days before the meeting. The notice must be posted in plain view on the front page of the website, or on a separate subpage of the website labeled “Notices” which is conspicuously visible and linked from the front page. The association must also post on its website any document to be considered and voted on by the owners during the meeting or any document listed on the agenda at least 7 days before the meeting at which the document or the information within the document will be considered.

l. Notice of any board meeting, the agenda, and any other document required for the meeting as required by s. 718.112(2)(c), which must be posted no later than the date required for notice pursuant to s. 718.112(2)(c).

3. The association shall ensure that the information and records described in paragraph (c), which are not allowed to be accessible to unit owners, are not posted on the association’s website. If protected information or information restricted from being accessible to unit owners is included in documents that are required to be posted on the association’s website, the association shall ensure the information is redacted before posting the documents online. Notwithstanding the foregoing, the association or its agent is not liable for disclosing information that is protected or restricted pursuant to this paragraph unless such disclosure was made with a knowing or intentional disregard of the protected or restricted nature of such information.

4. The failure of the association to post information required under subparagraph 2. is not in and of itself sufficient to invalidate any action or decision of the association’s board or its committees.